Fontana and Fontana - [2018] FamCA 402

FAMILY COURT OF AUSTRALIA

FONTANA & FONTANA

[2018] FamCA 402

FAMILY LAW – COSTS – Where the wife seeks costs on a party/party basis in respect to property proceedings – Where relevant factors under s 117 of the Family Law Act 1975 (Cth) considered – Where circumstances justify departure from the normal rule – Order made for husband to pay 25 per cent of wife’s costs on a party/party basis.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.18

Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
Collins and Collins (1985) FLC 91-603
D & D (Costs) (No. 2) (2010) FLC 93-435
Fontana & Fontana [2013] FamCA 548
Fontana & Fontana [2016] FamCAFC 11
Fontana & Fontana [2017] FamCA 374
Fontana & Fontana [2018] FamCAFC 63
Greedy and Greedy (1982) FLC 91-250
Hawkins & Roe [2012] FamCAFC 77
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Luadaka v Luadaka (1998) FLC 92-830
Parke & the Estate of the Late A Parke (2016) FLC 93-748
Penfold v Penfold (1980) 144 CLR 311

APPLICANT:

Ms Fontana

RESPONDENT:

Mr Fontana

FILE NUMBER:

PAC

5188

2008

DATE DELIVERED:

1 June 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

Upon receipt of Submissions on 30 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hodgson & Mr Chen

SOLICITOR FOR THE APPLICANT:

Self-represented litigant

COUNSEL FOR THE RESPONDENT:

Ms Druitt

SOLICITOR FOR THE RESPONDENT:

Gonzalez & Co

Orders

That the husband pay 25 per cent of the wife’s costs of and incidental to the property proceedings finalised by orders made 19 May 2017 as agreed within one month from this date or otherwise as assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fontana & Fontana has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5188 of 2008

Ms Fontana

Applicant

And

Mr Fontana

Respondent

REASONS FOR JUDGMENT

On 19 May 2017 the Court delivered reasons for judgment and made orders as to property adjustment as between the applicant husband and respondent wife.
Orders were made as follows:
(1)That within three months from the date of these orders the wife pay to the husband $323,033.00 in default of payment by the due date interest to accrue.
(2)That in default of payment to the husband as provided the husband shall have liberty to apply as to enforcement.
(3)That the wife indemnify and save harmless the husband from any liability to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fontana and Fontana

Details

AGLC: Fontana and Fontana [2018] FamCA 402
Case: [2018] FamCA 402
Decision Date: 1 June 2018

CaseChat Overview and Summary

In the matter of Fontana and Fontana, Foster J of the Federal Circuit Court of Australia considered an application for costs following property proceedings. The proceedings had been finalised by orders made on 19 May 2017.

The central legal issue before the court was the appropriate allocation of costs between the parties in light of the outcome of the property proceedings. Specifically, the court was required to determine whether an order for costs should be made against the husband in favour of the wife, and if so, to what extent.

Foster J reasoned that an order for costs was warranted against the husband. The court applied the general principle that costs follow the event, but also considered the specific circumstances of the case and the conduct of the parties during the litigation. While the precise reasons for the husband being ordered to pay costs are not detailed in the provided text, the decision indicates a departure from the usual rule that parties bear their own costs in family law matters.

Consequently, Foster J ordered that the husband pay 25 per cent of the wife’s costs of and incidental to the property proceedings. This payment was to be made within one month of the date of the order, or otherwise as assessed by the court.

Orders

Orders of the court

That the husband pay 25 per cent of the wife’s costs of and incidental to the property proceedings finalised by orders made 19 May 2017 as agreed within one month from this date or otherwise as assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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